In a general sense, ‘constitution’ means the whole scheme through which a country is governed; in its narrower sense, ‘constitution’ means the leading legal rules, usually collected into a document which is called ‘The Constitution,’ permanently this cannot be compressed in one document, as customs and conventions grow around this formal document, constitutional government is regarded ‘limited government’ as it requires public authority be exercised according to law, rights and duties of the citizens and the central government.
In English law, there is no real distinction between public and private law, but the main essentials of constitutional law are clear, they include all the rules relating to the crown and its powers, the functions, power and composition of the parliament and executive, which includes all organs of the central government.
Written constitutions are also described as ‘rigid’ meaning that they can be altered only in special ways; in the United States, to propose amendments requires two-thirds majorities of both houses of Congress or a convention called on the application of two-thirds of the states legislatures, and any amendment made is not effective until ratified by three-fourths of the states of the union. In Belgium and in South Africa, there must be a prescribed majority; in Switzerland and Australia, a referendum is necessary.
The British constitution is ‘unwritten’. It is not contained in a formal document; the nature of the British Constitution contrasts largely with every other country. (Encyclopedia Britannica 1968 vol. 5 pg 397).In the United Kingdom, the constitution is the law, but parliament can make or unmake it. This is in contrast with a rigid constitution, constitutional law can be changed, amended or abolished just like any rule of private law as in English law, and there is no real distinction between public and private law.
The ‘constitutionalism’ theory is sacred as constitutional law is a superior, moral binding force as it is the will of the people,’ constitutionalism means public authority is to be exercised according to the law. Lord Chesterfield quotes, “England is the only Monarchy in the world that can properly be said to have a constitution”.(Encyclopedia Britannica 1968 pg.397). The English people know that the royal powers are curtailed; all political power has been shifted from the crown to the people acting through their chosen representatives in the parliament.
All the states of the United States have written constitutions; they had to face many technical problems for constitutional changes, and whereas the constitution of the United Kingdom has proved to be very stable. States are described as unitary or federal depending upon the distribution of powers between central and local governments; all modern states find it necessary to have local as well as central governments. The British system is unitary; the powers of the local government are defined by statutes enacted by the parliament, the legislative organ of the central government, whereas the system of the United States is federal due to its constitutional law. (Encyclopedia Britannica 1973 vol. 5; pg 93).
Aristotle considered the mixed constitution as the best it would contain monarchic, aristocratic and democratic elements; its citizens, after they learnt to obey, were given a chance to participate in the rulings. (Encyclopedia Britannica vol.5; 1974, pg 93 ).
The great works of the social contract laid the foundation of constitutional theory. In the 17th century, Thomas Hobbes and John Locke and Jean Jacques Rousseau in the 18th century, Rousseau united all individual citizens into all-powerful sovereigns whose main purpose was to express the general common will of the individuals. Rousseau’s thoughts are more democratic towards the constitutional government.
Locke and Hobbes were more concerned to provide constitutional stability through consent; they also provided firm assurance of the individual’s natural rights by dividing the powers to the monarch and the parliament; John Locke also was against the concentration of power by the cooperation of other organs of the state government to accomplish different purposes. Thomas Hobbes main contribution to constitutionalism lies in his extreme rationalism; according to Hobbes, individuals come together out of the state of nature, like a state of disorder and war, their reason tells them that they can ensure their safety by giving all power to the sovereign, the sovereign may be a single person or an assembly or whole body of citizens and division of these powers destroyed sovereignty. Jean Jacques Rousseau writes.
“He that makes the law knows better than anyone else how it should be executed and interpreted. It would seem then; there could be no better constitution than one in which the executive power is united with the legislature.”(The Government of Europe by William Bennet Munro- chapter xxvii, pg 847).
According to constitutional theory, written constitutions are likely to give rise to more problems of interpretation and are difficult to change than unwritten ones. The unwritten can be changed gradually according to the changing needs. The main elements of the constitutional government are ‘ProceduralStability, Accountability, Representation, and Division of power’. Procedural stability is the basic rules the citizens must know according to which politics are conducted; an action that is considered legal and constitutional today must not be condemned as illegal tomorrow; the procedures must be stable.
Accountability; under the constitutional government, those who govern are accountable to at least a portion of the governed; accountability is owed to the electorate by all the persons in the government. Representation, those in the office are representatives of their constituents; they are responsible for providing procedural stability and accountability of the officeholders. Division of power, the constitutional theory, requires division of power of the government to several of its organs by dividing power between local and central government, the legislature, the executive and the judiciary; this ensures constant checks in the political system.
The constitutional government cannot survive in a situation where the pattern of behaviour is alien to the customs, way of thinking of its people; it means the state offices must state goals towards which the constitution wants its people to move. It is accepted in constitutional theory that parliament (the House of Commons and the House of Lords acting with the accent of the monarch) can do anything it wants to, including to abolish itself, parliament has the ability to change almost any of the constitution at will, according to the constitutional theory many far-reaching changes could be made, its flexibility is responsible to political and social change, e.g. Magna Carta has been repealed since 1828. A modern document states the rights of the citizens (e.g. freedom of speech) in the United Kingdom.
The common law authorizes the main source of ‘rights’ as civil rights. In the past decade, there have been rapid constitutional reforms; it includes the Human Rights Act, devolution of powers to the governments of Scotland, Wales and Northern Ireland, a reform of the House of Lords and the Freedom of Information Act. People of the world today disagree on so many actions and questions about what is right and what is wrong, the answer lies incompletely theorized agreements on (freedom of speech, quality under the law) such agreements help make constitutions and constitutional law possible, people work better in theorized agreements as people of different societies and culture can work together on terms of mutual respect (Ratio Juris, Cass R. Sunstein, Vol.13,issue1,2000).
The constitutional theory helps us to understand the theories of constitutional interpretations. It says that nomination and confirmation of Supreme Court Justices, selection must be made on the basis of virtue, strength, of their commitment to particular positions. Constitutional theory helps us to understand decisions taken by the Supreme Court, thus giving us a better understanding of constitutional law and the court decisions as explained (U San Diego Public law Research Paper, Lawrence B Solum, Paper #04-03). The explanation is given by Baker also helps us to understand the constitutional theory, how it sets the work of the constitution and how it is used to serve the aims of the society; the constitution serves the legal and social framework of society(Baker, Thomas E. “Constitutional Theory in a Nutshell”).
A countries identity is defined by its constitution and its interpretations. The use of comparative and international material must be deemed appropriate or improper based on a particular judges analysis; most important is that the interpreter must have the virtue of justice, lawfulness, and legal vision, virtues of judicial courage, temperament, and wisdom. (Research Paper, Lawrence B. Solum, March 4, 2004). The analysis of constitutional theory includes four theories : (Originalism, Majoritarianism, Natural law, and Pragmatism).
- Originalism. Originalism has always been based on historical events and background, particularly experiences rooted in English practices, to secure a greater understanding of the constitutional context. But such an approach offers little help to constitutional interpreters who are looking to future new world order, to step ahead and not to go back to ancient times.
- Majoritarianism. Majoritarianism is another constitutional theory that is not helpful for comparative material. An approach of judicial deference to the political branches offers little help to understand the theory. The Court has to depend on foreign experiences. Even if a persuasive argument could be made for a broader notion of a community standard in certain areas, such as regulation of obscene speech on the Internet, the Court has to depend on foreign leading cases.
- Natural Law. The natural law theory of constitutionalism is based on early experiences in constitutional interpretation, often relied upon natural law to limit legislative action. Modern variations of this theory find expressions in reading moral, constitutional text to understand natural law. It is discredited as a constitutional theory; people need to advance not to go back to ancient theories.
- Pragmatism. As far as classic constitutional theories go, pragmatism is the best theory that can sustain constitutional comparativism, but pragmatism is helpful in solving problems of the state by curtailing not advancing constitutional rights. Constitutional theory may be used as means to have a better understanding of the political and legal foundations of other nations. The constitution can be ineffective if the text and practice differ greatly and is not strictly enforced as the rule of law.
There are a number of approaches to constitutional theory (the Positive Constitutional Theory and Constitutional change). The constitution also evolves through time; this is explained as follows: “The constitutional system works and develops over time. It focuses on how government and political institutions interact and influence each other, and how features of politics and institutional structures influence the creation and development of constitutional doctrine”. (J.M.Balkin, “What Brown Teaches Us about Constitutional Theory” (2004)90 Virginia Law Review 1537, at 1537).
The positive constitutional change that affects and energizes the society makes the government strong. In my view, such changes ensure the protection of political and liberal democracy. The political and liberal democracy presents a most suited government based on the freedom of rights of the individuals, such kind of government has a strong political mechanism, it is increases protection of basic human rights, and avoids civil conflicts, within the state it also promotes security internally and externally, an example of such a state is Iceland’s liberal democracy was given when it was founded as a Republic in 1944, the country’s supreme law made adjustments as Iceland itself went through many changes. The constitution is a dynamic document according to the positive theory.
The United Kingdom constitution is drawn from a variety of written documents, and unwritten constitutional convention as these sources are of varying importance, as the United Kingdom uses the common law legal system, judgments made by judges are also form a source of the constitution, many sources are ancient in origin and some form the principles of the constitution.The constitutional conventions of the United Kingdom, such as the duty of the sovereign to act on the advice of the ministers, are not formally enforceable in court. (An Introduction to the study of the law of the Constitution) by A.V.Dicey.
States the two most important principles of the British Constitution, they are the principles of Parliamentary sovereignty and the rule of law; the Parliament is the supreme law-making body, the rule of law is the application of the law as all are equal in law, as a unitary state the powers of locally devolved bodies are dependent on Acts of Parliament, The main principle of this theory means that the monarch technically rules but in practice, she does not but has a ceremonial role only.
The labor government of Prime Minister Tony Blair made many constitutional reforms in late 1990’s The recent reforms have also decentralized the United Kingdom by setting up devolved parliament in Scotland and assemblies in Wales and Northern Ireland. Recent changes also include the Constitutional Reform Act 2005 which alters the structure of the House of Lords to separate its judicial and legislative functions.
The world is globalizing as it is going through many changes physically and climatically it changing its form randomly into a single society, we the people of this world have to learn to live together as one whole, through pain , and suffering of the human beings teaches us to live together as one society the essential structure of the society is the law which allows the society to survive and prosper, the progress of the society depends basically on the rule of law, it is the essential instrument in the social progress of the society and this means international rule of law is also essential at the global level. The constitutional theory explores the problems of the rule of law at the national and global level.
Constitutional theory has also a philosophical point if the foundation of the constitution is strong it is deemed functional, although constitutional theory may be used as a means to understand the political and legal foundations of the nation the constitution has to be strong that is its strictly implemented by the rule of law. This does not mean that the constitutions are just rules merely used for references they are serve as guidance in the implementation of law and order in the society, based on Baker’s explanation, it is clear that constitutional theory can be discussed with many theories though constitution has existed for decades it always revolves round the translation of democracy its principles and practice and this eventually affects in general the society.
Works Cited
Baker, Thomas E., “Constitutional Theory in a Nutshell”. Web.
Constitution. 2007. Wikipedia. Web.
Kariel, H. (1964). In Search of Authority: Twentieth-Century Political Thought. New York: Free Press of Glencoe.
Griffin, S. (1999). Constitutional Theory Transformed. Yale Law Journal, 108, pp. 2115-2163.
Goldsmith, J. (2003). Liberal Democracy and Cosmopolitan Duty. Stanford Law Review, 55, 1667+.
Tim Murphy. Farose Law Review. (2006). Vol. 6 No. 1.
The Icelandic Constitution. N.d. Permanent Mission of Iceland-Strasbourg. Web.
“What Brown Teaches Us about Constitutional Theory” (2004) 90 Virginia Law Review 1537, at 1537].
Arthur S. Miller. Politics, Democracy, and the Supreme Court Essays on the Frontier of Constitutional Theory. Web.